Racially-Based Suppression of the African-American Vote: The Role It May Play in the Upcoming Presidential Election

In less than one week, the 2004 presidential election will take place. One ticket might win a decisive victory, but it is also possible that, as John Dean predicted in his recent column, we could have a replay of the uncertainty that engulfed the 2000 election.

Regardless of who wins, however, a continuing, and execrable, election-related practice merits our attention. This practice has tainted electioneering for more than a century: It is racially-based vote suppression, the most recent practitioners of which have been Republicans.

What exactly is racially-based vote suppression? Simply defined, it is the targeting of potential voters, based on their race, in an attempt to suppress the exercise of their right to vote for the candidate of their choice.

Following the Civil War and passage of the Fifteenth Amendment, which guaranteed African-American men the franchise, suppression and intimidation tactics often included physical violence. But actual violence (or explicit threats of violence) were not then, and are not now, essential to the effective suppression of African-American votes.

As I will explain, the practice of racially-based vote suppression is not only morally despicable and illegal. It is also profoundly racist, in a variety of respects.

Recent Examples of Racially-Based Vote Suppression in the U.S.

According to a report by the NAACP and People for the American Way, entitled "The Long Shadow of Jim Crow: Voter Intimidation and Suppression in America Today," ("the NAACP report"), a Republican effort in New Jersey in 1981 provided a model that has been repeated across the country in the last two decades.

The reason for the intimidation is plain: According to the NAACP report, in the last few decades, "African American voters have largely been loyal to the Democratic Party, resulting in the prevalence of Republican efforts to suppress minority turnout."

In 1981's "model" effort, the Republican National Committee and the New Jersey Republican State Committee engaged in "widespread challenging of individual voters and an Election Day presence at African American and Latino precincts featuring armed guards and dire warnings of criminal penalties for voting offenses."

More recently, armed plainclothes officers from the Florida Department of Law Enforcement went to the homes of elderly black voters to investigate the March 2003 mayoral election. And in Pine Bluff, Arkansas, "five Republican poll watchers - including two staff members of Senator Tim Hutchinson's office - allegedly focused exclusively on African Americans, asking them for identification and taking photographs during the first day of early voting."

Perhaps the most famous recent example of racially-based vote suppression in the United States took place during the presidential election of 2000. The State of Florida ordered implementation of a purge list to remove voters from the rolls. The purge disenfranchised thousands of eligible voters - primarily African Americans. These citizens were prevented from casting ballots through their largely erroneous - and humiliating - classification as convicted felons.

After Bush v. Gore decided the election, a large group of U.S. Congresspersons attempted to lodge a protest on the Senate floor, excoriating this practice (and other irregularities in the 2000 Presidential election). At the time, the Senate included not a single African-American member. And shamefully, not one Senator was willing to give the protesters the signature needed to allow their speeches to be heard by the Senate.

Earlier this year, Florida once again ordered implementation of a purge list that would have removed thousands of eligible voters from the rolls. Fortunately, the state decided to back off when news media investigations revealed the truth about the list - it included thousands of qualified voters, and it heavily targeted African-Americans.

All Republicans ought to decry these practices. Instead, only a few months ago, Republican State Representative John Pappageorge from Michigan was quoted as saying that "If we do not suppress the Detroit vote, we're going to have a tough time in this election." Michigan is, of course, one of the "swing states" in which both Kerry and Bush have been trying very hard to garner a majority and facilitate an electoral win. And Detroit is over 80% African-American.

Why Racially-Based Vote Suppression is Invidious

One might be tempted partially to excuse racially-based vote suppression efforts in the following manner: Yes, it is true that Republicans have been trying to keep many black people from voting. The reason, however, has nothing to do with race per se. It has to do simply with the fact that black people - particularly in places like Detroit, Michigan - tend to vote for the Democrat.

On this view, Republicans who suppress black votes are not behaving in a "racist" fashion so much as they are simply trying to win an election by keeping the opponent's supporters away from the polls. If white Protestants tended to vote for the Democrat, then they too would become the target of Republican vote suppression efforts.

This excuse is only "partial," of course, because even if ongoing attempts at suppressing votes were not racially motivated at all, they would still be illegal and anathema to any democracy. Taken at face value, however, this argument still fails. When Republicans keep black people away from the polls because black people tend to vote for Democrats, such actions are indeed racist, and not just incidentally linked with race.

History Shows Why Voting By African-Americans Is Constitutionally Sacred

First of all, voting is a special and even sacred right when practiced by black people, and therefore, to interfere with that right, deliberately, cannot be treated like other, more innocuous election-year tactics. African-Americans have had a constitutional right to vote for less than 150 years, since the passage of the Fifteenth Amendment. Prior to that time, African-Americans were subject to the regime of slavery, in which white people - who counted as "persons" under the Constitution - had a protected right to "own" black people. Indeed, the Constitution itself - in the Three-Fifths Clause - gave slave-owning states greater representation in Congress by virtue of the presence of human property.

Recall that in the second presidential debate, George W. Bush was asked what sorts of judges he would appoint in a second term to fill any upcoming vacancies in the U.S. Supreme Court. Among other things, Bush said that he did not like judges who read nonexistent provisions into the Constitution. As an example of such illegitimate judicial lawmaking, Bush cited the decision in Dred Scott v. Sanford, which invalidated the Missouri Compromise by holding that a slave does not achieve emancipation simply by traveling to a territory that Congress has designated as free. In the course of its ruling, the Court gratuitously declared that descendants of African slaves could not become citizens.

The Thirteenth Amendment, of course, ended slavery, along with the inferior legal status afforded African Americans by virtue of that institution. And the Fourteenth Amendment explicitly overruled the account of citizenship embraced by Dred Scott. So the risk of any judge - appointed by either Bush or Kerry - writing a decision protecting the "right" of a white man to own an African-American slave, is not a substantial one.

Nonetheless, Bush's remarks serve to remind us that prior to passage of the Thirteenth Amendment, slavery was sanctioned not only by the courts, but by the U.S. Constitution itself. The Republicans - and their champion George W. Bush - condemn slavery, and that is surely a good thing. But two other Amendments were passed in the same period as the Thirteenth, and those - the Fourteenth and Fifteenth Amendments - gave African-Americans rights that went beyond self-ownership. They gave black people (or at least black men) the right to be treated equally by our laws and the right to vote.

To use race as a proxy for the enemy and to differentially keep that enemy away from the polls, then, is in direct conflict with those rights guaranteed by two of the three Reconstruction Amendments. Such a conflict therefore cannot fairly be characterized as innocuous. The simple fact that African Americans are identified and silenced by virtue of their skin color while other Democrats - not similarly vulnerable to such unscrupulous practices - are left alone suggests as much.

History Reveals Another Reason Racially-Based Vote Suppression Is Invidious

There is another reason that suppressing the black vote, through intimidation or otherwise, is a form of invidious racial discrimination. It has to do with the explanation for black loyalty to the Democratic Party. It is no accident that minorities at this time tend to favor Democrats. Historically - as Republicans like to point out - the former slaves preferred the "party of Lincoln." But that has not been true for some time.

The former party of Lincoln has for decades embraced the so-called Southern Strategy of attempting to win national elections by appealing to the many Southern voters who have Confederate flags on their cars, despise integration, and otherwise express dissatisfaction with the outcome of the Civil War. Put starkly, Republicans have - since Richard Nixon - deliberately courted racist voters. Presidential election ads have specifically connected votes for the Democrat with racially distributed welfare payments, and - famously - with the furlough of frightening, violent, African-American criminals like Willie Horton.

The policies of the Republican Party have thus been crafted, in part, to appeal differentially to white people who oppose equality for black people. Understanding the impact of such policies, moreover, minorities have tended to oppose Republican candidates in large numbers.

There is thus an uncomfortable conflict between Republican values, on the one hand, and the needs of African-American people in this country, on the other. In light of this conflict, then, it is quite logical - and racist in its logic - that the very people who have been courting white racist voters with their policies would simultaneously attempt to keep the victims of such policies from exercising their constitutionally guaranteed right to vote such people out of office.

No Race-Neutral Racism: Targeting African-Americans Is as Racist as it Looks

Suppression of the black vote is thus not only anti-democratic but deeply racist. It arises from a history of violent resistance to the equality of African-Americans in this country, and it thrives on the poverty and vulnerability that continue to plague the black community throughout this nation as a lasting legacy of slavery. It violates rights for which people died in the Civil War, and which are now enshrined in the U.S. Constitution. And it punishes the victims of our racist history for opposing candidates whose agendas may preclude progress in achieving a true and lasting equality.

Perhaps if George W. Bush were as outraged by such practices as he is by a pre-Civil War decision embracing slavery, his party would not need to rely for victory on violating the letter and spirit of the Reconstruction Amendments.

Sherry F. Colb, a FindLaw columnist, is Professor and Judge Frederick B. Lacey Scholar at Rutgers Law School-Newark. Her earlier columns may be found in the archive of her work on this site.